Citation Nr: 0027536
Decision Date: 10/18/00 Archive Date: 10/26/00
DOCKET NO. 98-19 563A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been submitted
sufficient to reopen the veteran's claim for entitlement to
service connection for prostatitis.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had verified active military service from
December 1943 to April 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in
Montgomery, Alabama.
In July 2000, the veteran testified at a hearing held before
the undersigned, who was designated by the Chairman to
conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West
Supp. 2000). A transcript of that hearing is of record.
FINDINGS OF FACT
1. The RO denied reopening of the claim of entitlement to
service connection for prostatitis in September 1997, and the
veteran did not appeal that decision.
2. Evidence received since September 1997 includes duplicate
service medical records, private and VA medical records,
transcripts of testimony given before the Board and the RO,
and written contentions by the veteran.
3. While some of the evidence received since September 1997
is new, it is not so significant that it must be considered
in connection with the claim for prostatitis.
CONCLUSIONS OF LAW
1. The September 1997 rating decision denying the veteran's
request to reopen his claim for entitlement to service
connection for prostatitis is final. 38 U.S.C.A. § 7105(c)
(West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302
(1999).
2. Evidence received since September 1997 is not new and
material, and the veteran's claim is not reopened.
38 U.S.C.A. §§ 1110, 1131, 5108 (West 1991 & Supp. 2000); 38
C.F.R. § 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
In November 1945, the veteran complained of frequency of
urination and aching bones. He reported having gonorrhea six
years previously. On examination, his prostate was enlarged
and boggy. Medication was not prescribed. Two days later,
he had improved, and he was scheduled for prostatic massage
in a week. After undergoing massage, he reported frequency
and urgency. In December 1945, the inguinal glands on the
left were slightly enlarged and tender. He reported that he
still had some urgency at night (two times a night). On
examination prior to discharge in April 1946, the genito-
urinary system was normal.
In April and May 1952, the veteran was hospitalized at a VA
hospital for dermatophytosis of the hands and feet. He
reported a history of nocturia for the past six or seven
years. He reported that he had had gonorrhea a total of four
times, most recently in 1946. Urgency was frequent, and he
had been treated for prostatitis diagnosed by a physician he
consulted because of impotence. Treatment during
hospitalization was for the skin disorder. Genitourinary
consultation was obtained because of pyuria, and no
genitourinary disease was found. The posterior urethra was
treated with 1 percent silver nitrate solution for its
psychic effect on impotence.
In a statement received in January 1955, the veteran sought
to establish service connection for prostatitis. Entitlement
to service connection was denied in a February 1955 rating
decision. He was informed of the rating decision in March
1955. He did not appeal.
In December 1961, the veteran was again admitted to the VA
hospital in Pittsburgh, Pennsylvania. His admission was for
surgical repair of a finger laceration, and one previous
hospitalization, for skin rash, was noted. He was discharged
in January 1962. No treatment for or complaints of
prostatitis were noted.
In November 1963, the veteran filed a statement he called a
"Notice of Disagreement." In it, he asked consideration of
his "service connected prostate condition." The RO
responded, telling the veteran that he did not identify the
date of the decision he wished to appeal. The RO advised him
that a claim of entitlement to service connection for a
prostate condition had been disallowed in March 1955, and
that the time to appeal that decision had expired. He was
advised of the need to submit new and material evidence to
reopen that claim.
In June 1975, the veteran requested that his claim be
reopened. The RO notified the veteran that he had not
submitted new and material evidence to reopen his claim. In
July 1975, the veteran's representative submitted a notice of
disagreement with the denial of service connection for
prostatitis. The RO notified the veteran that he had the
right to appeal if he did not agree, but he should identify
any error he believed had been made. He was advised that he
had one year to initiate his appeal. He did not respond to
the letter.
In July 1976, the veteran submitted a claim for service
connection for prostatitis, accompanied by a private doctor's
affidavit. The veteran was seen in July 1976 reporting a
history of prostate problems in the past with an evaluation
in Pittsburgh 14 years previously. On examination, the
prostate was +1 and benign. The diagnosis included
prostatitis and benign prostatic hypertrophy.
In July 1976, the RO notified the veteran that the evidence
necessary to reopen his claim would be medical evidence
showing that the condition was incurred during military
service, existed at the time of separation from the service,
and had continued to the present time.
In September 1988, the veteran submitted a doctor's statement
from R. B. Bass, Jr., M.D., dated in August 1988. In it, Dr.
Bass reported that he had seen the veteran between April 1985
and July 1988. History and complaints included transurethral
resection of the prostate (TURP) for benign disease, and
visual internal urethrotomy (VIU) for urethral stricture
disease. Diagnoses were BPH and urethral stricture. In an
October 1988 rating decision, the RO determined that new and
material evidence had not been submitted. The veteran was
notified of the rating decision and of his appeal rights in
October 1988.
In October 1988, the veteran submitted another statement from
Dr. Bass showing a diagnosis of chronic prostatitis, with no
other pertinent information. The veteran submitted a notice
of disagreement to his congressman, who forwarded it to the
RO.
The RO issued a statement of the case in December 1988. The
veteran did not submit a substantive appeal.
In January 1997, the veteran submitted another application
for benefits; he requested service connection for
prostatitis. To support his claim, he submitted duplicate
service medical records. He also offered his private medical
records for treatment he received at the Mobile Urology Group
from April 1985 to December 1996. They show monitoring of
penile prosthesis. PSA (prostate-specific antigen) and his
prostate were checked regularly. In September 1988, the
veteran told his doctor that he had gonorrhea in 1939 and
wanted to know if this could be the same as urethral
stricture disease and whether this was service connected.
The doctor told him he did not think so and not to count on
it. Of note, in October 1989 the veteran asked his urologist
whether his prostatitis could be service-connected. The
urologist told him "no." In August 1992, the veteran was
treated for acute prostatitis.
Also presented were hospital records dated in June 1995
reflecting surgical treatment for hyperplasia of the
prostate, showing transurethral prostate resection, urethral
stricture release, and cystoscopy.
In a rating of September 1997, the RO determined that new and
material evidence had not been submitted. The veteran was
notified of the decision and in response, he forwarded
additional medical records, received in February 1998. These
records consisted of duplicate service medical records,
private treatment records dated April 1985 to July 1997 (he
later submitted records through December 1998), and VA
treatment records from the VA medical center in Pittsburgh,
Pennsylvania, dated from 1952 to 1976.
Many of these records were duplicates of evidence already of
record or deal with conditions not in issue. VA treatment
records show that, in April 1974, the veteran complained of
burning and pain on urination with frequency of two times at
night and complaints of dribbling and hesitancy. He was
scheduled for intravenous pyelogram (IVP). At the time of
the IVP, he reported voiding was better, and there was no
prostatic impingement. The IVP was read as normal. On a
psychiatric consultation report dated in October 1974, the
veteran reported difficulty in erection. He reported a
history of prostatic condition diagnosed when he was on
Guadalcanal during World War II. He had a TUR 11 years ago.
In February 1975, a cystogram showed no prostatic obstruction
but a mild bladder neck contraction.
Private treatment records are from Mobile Urology Group.
Those through December 1996 are duplicates of those presented
before. Records dated from February 1997 to December 1998
are new. They show continued monitoring of the penile
implant and monitoring of PSA. In February 1997 and June
1998, his prostate was smooth with no nodularities. PSA in
December 1996 and December 1997 was 1.1.
The RO determined that the veteran had not submitted new and
material evidence to reopen his claim in a rating decision
dated in April 1998. The veteran filed a notice of
disagreement with the April decision. In that notice, the
veteran contended that he suffered from his prostate problems
while he was in service and that he has continued to
experience the same problems. He related his penile implant
to the prostatitis.
In March 1999, a hearing was held at the RO. During his
testimony, the veteran reported that while he was stationed
on Guadalcanal during World War II, he began to experience
pain and discomfort. To relieve this problem, his prostate
was massaged. He further stated that after he was released
from active duty, he continued to have problems and he sought
treatment at the VA hospital in Pittsburgh, Pennsylvania. He
discussed the various symptoms and manifestations he
experienced that he attributed to prostatitis, and he also
covered his recent treatment for this and other urological
conditions he had received.
The veteran submitted a written statement from T. P. Ahmadi,
Sr., M.D. In this letter, dated March 1, 1999, Dr. Ahmadi
wrote that the veteran told Dr. Ahmadi that the veteran felt
his erection problems were due to the prostatitis he had in
the Armed Forces. The veteran felt that his sleep problems,
which caused him irritability, stemmed from the prostatitis
he had while in the Armed Forces.
In July 2000, the veteran provided testimony before the
Board. The veteran repeated his previous contentions but
also added that he had been given medications for the
enlarged prostate. He further said that he had received
treatment for his condition immediately following his release
from active duty and that he continued to receive treatment
for his prostate condition.
II. Analysis
A decision of a duly-constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the veteran is notified
of the decision. 38 C.F.R. § 3.104(a) (1999). Such a
decision is not subject to revision on the same factual basis
except by a duly constituted appellate authority. Id. The
veteran has one year from notification of a decision of the
agency of original jurisdiction to file a notice of
disagreement (NOD) with the decision, and the decision
becomes final if a NOD is not filed within that time. 38
U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d)
and 20.302(a) (1999). In order to reopen a claim which has
been previously finally denied, the claimant must present new
and material evidence. 38 U.S.C.A. § 5108 (West 1991).
The RO initially denied service connection for prostatitis in
February 1955. It subsequently affirmed that decision in
June 1975, July 1976 (by letter), October 1988, and September
1997. These decisions are all final.
In order to reopen a claim which has been previously denied
and which is final, the claimant must present new and
material evidence. 38 U.S.C.A. § 5108 (West 1991). New and
material evidence means evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
evidence required to reopen must be new evidence that is not
cumulative of evidence presented before the last prior
disallowance and that is material to the issue at hand.
Struck v. Brown, 9 Vet. App. 145, 151 (1996).
Accordingly, the Board must look to evidence submitted since
September 1997, the date of the last final disallowance.
When presented with a claim to reopen a previously finally
denied claim, VA must perform a three-step analysis. Elkins
v. West, 12 Vet. App. 209 (1999). First, it must be
determined whether the evidence submitted by the claimant is
new and material. Second, if new and material evidence has
been presented, it must be determined, immediately upon
reopening the claim, whether the reopened claim is well
grounded pursuant to 38 U.S.C. § 5107(a) (West 1991) based
upon all the evidence and presuming its credibility. The
United States Court of Appeals for Veterans Claims,
hereinafter the Court, concluded in Elkins that the Federal
Circuit in Hodge effectively "decoupled" the relationship
between determinations of well-groundedness and of new and
material evidence by overruling the "reasonable-possibility-
of-a-change-in-outcome" test established by Colvin v.
Derwinski, 1 Vet. App. 171 (1991). There is no duty to
assist in the absence of well-grounded claims. Epps v.
Gober, 126 F. 3d, 1464, 1468 (Fed. Cir. 1997) cert. denied,
sub nom. Epps v. West, 118 S.Ct. 2348 (1998). Third, if the
reopened claim is well grounded, VA may evaluate the merits
of the claim after ensuring that the duty to assist under 38
U.S.C. § 5107(b) (West 1991) has been fulfilled.
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110 and 1131
(West Supp. 2000); 38 C.F.R. § 3.303(a) (1999).
The evidence received subsequent to the September 1997 rating
decision is presumed credible for the purposes of reopening
the veteran's claim unless it is inherently false or untrue,
or it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995);
Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).
Since the September 1997 rating decision, the following
evidence has been received:
a. duplicate service medical records;
b. the veteran's contentions;
c. testimony before an RO hearing officer and the
Board;
d. VA medical treatment records dated from 1952 to
1976;
e. private medical records dated from 1985 to 1998;
and,
f. a letter from Dr. Ahmadi.
The veteran's written contentions are not new. They are
cumulative of his assertions made prior to the September 1997
decision. The veteran's hearing testimony likewise provides
no new, competent evidence in support of his claim. Lay
statements concerning the onset of these conditions are not
competent. See Espiritu v. Derwinski, 2 Vet. App. 492
(1992); see also Moray v. Brown, 5 Vet. App. 211 (1993) (lay
assertions of medical causation cannot serve as the predicate
to reopen a claim under 38 U.S.C.A. § 5108). Service medical
records are not new.
The VA medical records dated from July 1970 to February 1976
are new. They show treatment for various conditions,
including ingrown toenail in July 1970, low back pain in July
1973, and an April 1974 intravenous pyelogram (IVP). An
October 1974 psychiatric consultation shows complaints of a
prostatic condition during World War II and a history of TUR
11 years previously, with remaining sexual functioning, and
no complaints of sexual difficulties until recent weeks.
While these VA treatment records are new, they are not
material. They do not relate any current prostate problems
to active military service, and, for the most part, they
reveal no treatment for prostate problems.
The private medical records from Mobile Urology Group are,
for the most part, duplicates. The records dated in 1997 and
1998 are new, but they add nothing relevant and probative
with respect to the veteran's claim. In fact, they show no
prostate problems during that time frame. They are not so
significant that they must be considered in order to decide
the veteran's claim fairly.
The letter from Dr. Ahmadi is also new. It, however, merely
records what the veteran told the doctor. Dr. Ahmadi did not
endorse or express any agreement with what he reported as the
veteran's feelings. He gave no medical opinion.
Accordingly, it is merely cumulative. Thus, even if
considered new, these records are not material, as they have
no bearing on whether prostatitis or any current prostate
disorder arose during or is attributable to service.
New and material evidence has not been presented to reopen
the veteran's claims of entitlement to service connection for
prostatitis, and that claim must be denied. 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999).
Where a claimant refers to a specific source of evidence that
could reopen a finally denied claim, VA has a duty to inform
him of the necessity to submit that evidence to complete his
application for benefits. 38 U.S.C.A. § 5103(a) (West 1991);
see Graves v. Brown, 6 Vet. App. 166, 171 (1994). The VA has
no outstanding duty to inform the veteran of the necessity to
submit certain evidence in this case, because nothing in the
record suggests the existence of evidence that might reopen
the finally denied claim of entitlement to service connection
for prostatitis.
ORDER
New and material evidence has not been submitted in support
of this claim for service connection for prostatitis, and the
claim has not been reopened. The benefit sought on appeal is
denied.
J. SHERMAN ROBERTS
Veterans Law Judge
Board of Veterans' Appeals